Legal Ease Post-Pandemic Workplace Fallout
By Richard D. Alaniz, Alaniz Law & Associates Continued Layoffs
off as the COVID-19 pandemic spread across our country. Job losses occurred in almost all industries, including employers big and small.
O It is virtually certain that COVID-
19-related layoffs are going to continue. In one survey, 32% of Chief Financial Officers said that they believe that there will be more job cuts. “While federal and state governments are seemingly doing all they can to support U.S. businesses, SHRM research shows one-third of U.S. employers are still laying off workers and will continue to do so in the weeks and months ahead” said Johnny C. Taylor, Jr., SHRM-SCP, SHRM president and CEO. That observation was confirmed by Dan Lovine, head of Oxford Economic Location Strategies, who was the lead researcher on the project.
Reopening Issues Throughout the COVID-19 pandemic, the Center for Disease Control and Prevention (CDC), the U.S. Department of Labor (DOL), the Occupational Safety and Health Administration (OSHA), state governments, and local health agencies have been issuing, revising and updating guidance and recommendations for prevention of workplace exposure to COVID-19. As businesses reopen, it is imperative that they have in place all measures of prevention recommended by the various authorities, to the fullest extent possible. Failure to take these steps will potentially expose employees and customers to infection. It could provide the basis for DOL and/or OSHA charges, as well as potential lawsuits. While Congress is currently debating some protections from liability for companies that adhere to the CDC and related guidelines, as part of any future stimulus bills, it is far from clear that it will be a reality.
28 ❘ June 2020 ® ver the past eight weeks or
so we have seen millions of employees furloughed or laid
Worker’s Compensation Claims Employee claims of work-related infections are likely to be handled as workers compensation claims. However, because of the serious problems with proving the infection was contracted in the workplace, such claims may be dismissed. California, as the result of a recent executive order from Governor Newsom, has decided to provide a rebuttable presumption that the infection is work-related for Workers Compensation coverage. Other states have taken a similar position.
Employee’s Afraid to Return to Work An additional issue that is likely to arise is the refusal of furloughed employees to return to work for fear of contracting the virus. Such a refusal raises several potential legal considerations. Under normal circumstances, the employee’s refusal might be treated as a voluntary quit. It would also likely disqualify the employee for continued employment benefits. However, as one might expect, in these unprecedented circumstances the old rules might not apply. The employee may have an underlying medical condition or be of an age that makes them particularly vulnerable. In addition, the anxiety that fear of infection causes could constitute a “disability” under the Americans with Disabilities Act, as amended (ADA). That would obligate the employer to consider reasonable accommodation of the employee’s anxiety, such as a leave of absence.
Layoff Issues
Unless an employer is party to a collective bargaining agreement, which almost always contain layoff and recall procedures, or has specific written layoff
procedures in its employment
policies, there are no restrictions on how a permanent layoff is conducted. Of course, it cannot be discriminatory in that any group protected under federal
or state law is subjected to disparate treatment.
WARN Act Issues it
Depending upon the number affected,
could trigger employer
notice obligations under the Workers Adjustment and Retraining Act (WARN). The law generally covers employers with 100 or more employees. It requires that employers provide notification of 60 calendar days in advance of plant closings or mass layoffs. Notice must also be given to the State dislocated worker unit and to the chief elected official of the local government in which the employment site is located. The layoffs that may be necessitated by a long- term business downturn could become a “mass layoff” for WARN purposes. A covered mass layoff occurs when 50 to 499 employees are affected during any 30-day period at a single employment site, or as the result of multiple layoffs during a 90-day look-back period. This latter circumstance could apply to a situation where previously furloughed or laid off employees and employees that are now being laid off total more than 50 employees in a 90-day period. The layoff must last more than six months for WARN to apply. In light of the many uncertainties about the economy, employers should assume that the layoff could exceed six months and give the required WARN notice. There are some limited exceptions to the 60-day notice requirement. The one that has been cited by some as possibly applying to the current situation is the “Unforeseen Business Circumstances Exception”. It generally applies when business circumstances were not reasonably foreseeable at the time that 60 days’ notice would have been possible.
Pandemic-Related lawsuits The American Bar Association reported that as of the first week in May 2020,
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